Can Muslim Doctors Refuse to Treat the Opposite Sex?

Not too long ago, the ethics of medicine were pretty straightforward. Inspired by the Hippocratic Oath, doctors, nurses, pharmacists, and other medical professionals generally followed the “do no harm” maxim, seeing themselves (ideally) as duty-bound to protect and preserve all human life.

But times have changed. Society has grown increasingly morally pluralistic, while at the same time medical technology has advanced, making the work of medical professionals far more complicated. For example, abortion is now considered a right throughout most of the West, but many physicians conscientiously object to participating in taking the lives of fetuses. Many gay couples use in-vitro fertilization, surrogacy, and sophisticated artificial insemination procedures to have children, while some fertility doctors resist participating for moral reasons. With health care cost-cutting coming strongly to the fore, most mainstream bioethicists want to grant doctors the right to refuse life-sustaining treatment they consider “futile” because it is expensive to merely “extend the time of dying.”

These moral conflicts have sparked an increasingly heated bioethical controversy: Whether—and to what extent—medical professionals have a right of conscience to refuse their services based on religious or moral objections to what the patient desires.

This situation would be dicey enough within the framework of the familiar secular-religious clash, but now it has taken a new twist. With the Muslim population increasing in Western Europe and the United States, that faith’s strict religious requirement to maintain modesty between the sexes has prompted some Muslim medical professionals to ask whether female doctors can refuse to examine or treat any male patients at all—and vice-versa. These objections have been relatively few in number (thus far), but they raise a far stronger and more sweeping demand than the many ethical objections arising from Judeo-Christian morality, objections which often center on the refusal to prescribe a certain drug or administer a specific treatment. The layer of complexity the Muslim claim adds to the debate also makes it impossible to reduce the “religious case” to a simple argument or clear-cut demand for exemption.

A recent article published in the Journal of Medical Ethics grappled with that question in the context of male Muslim medical students refusing to learn how to examine females because they believe it is wrong to touch women to whom they are not married or related. The article argues—persuasively in my view—that medical conscience should not extend this far because it would result in future physicians lacking an “essential competency”:

By refusing to perform examinations on members of the opposite sex, such students are failing to engage the question of what constitutes a touch that is professional and non-sexual—one that exemplifies a ‘cool intimacy’ that is still compatible with closeness to a patient. The matter here is not mechanics of touch; it is instead an emotional and psychological investigation whereby one learns how to cognitively distinguish clinical touching from touch that might otherwise signify erotic or romantic affection. This reasoning suggests that an inherent part of learning how to perform physical examinations involves a deep core competency . . . [and thus] gaining knowledge necessarily involves participation in the objected-to activity.

That seems indisputable to me. One simply can’t receive a thorough medical education by learning to practice exclusively on one’s own sex.

But that still leaves us with the bigger question: On one hand, doctors, nurses, and others are professionals owing fiduciary duties to their patients that—in most circumstances—trump their personal morality and preferences, a concept some have called “patients’ rights.” On the other hand, medical professionals are not mere technocratic order-takers who should be forced to do whatever a patient desires.

I believe in a strong—but limited—medical conscience right. The question thus becomes where to draw the line between the duty to treat and the right to refuse.

A few years ago, I published an article in First Things, in which I proposed criteria for determining when a professional’s conscience should prevail over the needs or desires of a patient that I think can help us in our deliberations. These guidelines suggest that no medical professional should be compelled to perform or participate in procedures or treatments that take human life except in rare and compelling circumstances in which a patient’s life is at stake. Furthermore, no medical professional should ever be forced to participate in a procedure intended primarily to facilitate a patient’s lifestyle preferences or desires (in contrast to maintaining life or treating a health-threatening disease or injury). And it should always be the procedure that is objectionable, not the patient.

The provocative question of medical conscience is an inescapable consequence of multiculturalism. But the reality of our profound moral differences doesn’t mean that we don’t have the duty to establish enforceable ethical norms to govern the practice of medicine and associated disciplines, as we also strive to protect people from doing that with which they profoundly disagree. It won’t be easy. These issues cut to the core of culture and personal beliefs, which is why medical conscience rights will be an emotional bioethical flashpoint for many years to come.